Fighting Internet piracy: CES takes on SOPA vs. OPEN debate

Down the hall from general CES craziness, a panel of congressional staffers, …

While thousands of tech vendors frantically demoed new gadgets and apps at the giant Consumer Electronics Show in Las Vegas, a debate over the future of the Internet and how the government may regulate distribution of (often pirated) content was taking place down the hall.

As Ars readers know, bills like the Stop Online Piracy Act (SOPA) and the Online Protection & Enforcement of Digital Trade Act (OPEN) offer competing approaches to cracking down on piracy. But SOPA, introduced in the House of Representatives, and a similar Senate bill called the Protect IP Act (PIPA) have garnered scorn for potentially placing technical barriers on the Internet and even harming parties that have no intent to break the law. Copyright groups, in turn, think OPEN—which takes a "follow the money" approach, putting power in the International Trade Commission rather than the Department of Justice—won't do enough to protect owners of copyrighted material.

With all three bills under debate by our elected leaders, CES convened a panel including Congressional staff members, a musician, lawyers, a Web hoster, and a representative of the Copyright Alliance. It was moderated by Rick Boucher, a Democrat who represented Virginia's 9th congressional district in the House for 28 years ending in 2011.

"While I really don't miss being in Congress, I really do miss being on the House Judiciary Committee and being able to take part in this particular debate," Boucher said in introduction.

As Boucher explained, while PIPA and SOPA differ in some ways, they both would give the government ability to designate rogue websites, remove those sites from the Internet's domain name system, require search engines to remove the sites from results, prevent advertisers from doing business with the "rogue" sites, and lessen protections currently provided to site owners during Digital Millennium Copyright Act (DMCA) takedown processes.

OPEN, on the other hand, tries to tackle piracy by cutting off the money supply to people who profit from illegal distribution of copyrighted material, he said, while noting that the same "follow the money approach" is similar to what Congress has applied to online gambling. This enforcement mechanism has worked "reasonably well," Boucher said.

The argument for SOPA

Among six panelists, there was just one pushing SOPA and Protect IP: Sandra Aistars, executive director of the Copyright Alliance. Most panelists seemed to agree that a recent amendment to SOPA has fixed some problems with the bill and narrowed its scope, although Aistars was the only one favoring the bill on the whole.

Aistars said the current bill is "very narrow in targeting only sites designed or operated for distributing complete copies of copyrighted works in an infringing manner for purposes of financial gain." The bill would not sweep in sites like Facebook, Twitter, LinkedIn or Reddit, she said, and doesn't impose technology mandates on site operators.

OPEN, on the other hand, would create a costly process through the ITC for taking down infringing content, a process that would be too costly for indie filmmakers, songwriters or other artists to pursue. She also said SOPA will help protect consumers from purchasing illegally distributed physical goods that could be harmful to them, like poorly manufactured smoke detectors and drugs that don't contain the proper active ingredients.

"One thing I'm concerned about is this is being portrayed as a Hollywood vs. tech industry debate, and it's far broader than that," she said. In addition to consumers, she said "rogue websites affect small businesses and entrepreneurs across the country."

Basically, no one on the panel agreed with her. On the panel was Jayme White, a staffer for Sen. Ron Wyden (D-OR), the co-sponsor of OPEN. White is also staff director of the Subcommittee on International Trade, Customs, and Global Competitiveness.

SOPA could "break" the Internet

"Our overarching concern over PIPA is it takes an at-all-costs approach," White said. "It doesn't matter if you start breaking part of the Internet, that it doesn't matter if you start making the Internet less of a platform for innovation, as long as you combat IP [violation] in the way opponents of the legislation want to combat it." Further, he said, the scope of Protect IP is such that "it potentially captures websites that have a legitimate purpose, specifically the definition of a rogue website could capture Internet sites where there's user-generated content, where there's a free exchange of ideas, speech and perhaps some links that go to some sites the content industry doesn't like."

The panel also included Ryan Clough, legislative counsel for the Office of Rep. Zoe Lofgren (D-CA); Christian Dawson, COO of managed hosting vendor Servint; Casey Rae-Hunter, a musician and Deputy Director of the Future of Music Coalition; and Lateef Mtima, a professor of law at Howard University.

Clough said SOPA and Protect-IP create an architecture for Internet censorship. "Once we create this system, there is no way it will be contained to copyright infringement," he said. Further, he argued "this bill will make it easier for China to keep imposing the types of controls on the Internet that it does and to keep resisting international pressure against it."

Dawson argued on behalf of small businesses with online presences. He claimed that five to ten percent of DMCA takedown notices already are fraudulent ones, and that SOPA will only boost the number of wrong accusations and penalties levied against legitimate businesses. The pirates, on the other hand, will be ready with technology workarounds and escape penalties, he argued.

Rae-Hunter opposed the notion that SOPA is good for content owners, particularly independent ones. "The trade organizations representing the content industry simply do not represent all creators," he said. "Because of the open Internet, we are now seeing what a legitimate digital marketplace looks like and seeing increased consumer interest in legal, licensed services. It is that very ecosystem that could be threatened by legislation like SOPA."

For one thing, artists often use cyberlockers to share files with each other, legally, but those sites could be threatened, he said.

Mtima, noting that he is an IP lawyer, compared the debate to a shootout in an old western, in which stray bullets hit innocent bystanders. He also questioned the logic of combining the fight against pirated digital content with the fight against illegal sales of fake prescription medication. While Aistars argued the same types of sites perpetrate both crimes, Mtima said the harm caused by each one is fundamentally different.

The panelists were also asked for predictions on the legislative process. White said "If Protect-IP is stopped in the Senate, our view is that SOPA is dead in the House." Because of widespread opposition, the bills have become "extremely toxic politically," and he warned against acting too fast on either SOPA or OPEN. "This isn't the PATRIOT Act. We don't have to act too fast here," White said.

Clough, meanwhile, said there are enough votes to get SOPA out of the Judiciary Committee. But opponents have a chance to block it. "At the very least, in the House we've gone from thinking a bill like this would sail through very quickly to one in which there is at least uncertainty," he said.

A final note on Internet openness

Although this panel we've just described was advertised publicly and open to CES attendees and press, White asked not to be quoted publicly in news stories. Before he delivered his quite public remarks, he said "First let me say my remarks are off the record, so please don't quote me. I used to work for a member of the House, who said 'I can get into as much trouble in the press as I need to without you making it more difficult for me.' But if there's something you want to report on we can talk after this."

Rae-Hunter scoffed at that request, introducing his own remarks by saying "Everything I say can be taken on the record so we can drop the pious baloney." Given that Rae-Hunter argued on behalf of Internet openness, this seemed appropriate.

Wyden's office tells Ars that White's statements were not off the record (which is good, because we were planning to quote him anyway). Rather, White was simply concerned his statements would be portrayed as being made on behalf of the senator, when in reality White is a policy expert and his opinion stands on its own. In any case, opponents of SOPA and Protect-IP should be cheered by both White's and Wyden's opposition to the bills.

"Dawson argued on behalf of small businesses with online presences. He claimed that five to ten percent of DMCA takedown notices already are fraudulent ones, and that SOPA will only boost the number of wrong accusations and penalties levied against legitimate businesses." Cry me a river. For every fraudulent DMCA notice there are hundreds if not thousands of legitimate ones. I suppose in Dawson's view the "small businesses" who create content for a living should be thrown under the bus.

The DMCA is virtually useless against all but the most minor and sporadic of copyright violations. For most content creators-authors, musicians, filmmakers, etc. the volume of piracy overwhelms their ability to effectively send take-down notices. Cyberlockers (that profit from the traffic generated by those who come to download illegal content) are loathe to truly respect the intent of the "safe harbor" provision of the DMCA. They pay it lip service in their "Terms of Service" yet do anything and everything to avoid the spirit of the law.

There are solutions. The first step is to recognize that the internet has become a focus of commerce, both good an bad. We regulate commerce in many ways. The internet should not be above the law. Taking action against piracy's profiteers will not "break the internet." Actually, it's likely to "fix" it.

This is absolute bs "very narrow in targeting only sites designed or operated for distributing complete copies of copyrighted works in an infringing manner for purposes of financial gain." if you believe that you'll believe anything. signed Father Christmas.

The patriot act itself was enacted way to fast, with no real debate about it. Anybody who stood against it was portrayed as someone who supported terrorists. It's still extended on the same basis, with no real debate as to why it is still necessary or what to do about the repeated misuse of the act by the FBI and the NSA.

I've come to stop caring about SOPA. It's doubtful that it will pass anyways. The bill can't even make it out of committee without huge amounts of controversy and stalling. Why would it pass two houses?

very narrow in targeting only sites designed or operated for distributing complete copies of copyrighted works in an infringing manner for purposes of financial gain

No new laws are needed in order to deal with copyright infringement and bootleggers and people who sell fake merchandise. We already have laws on the books and they are quite stiff in penalty.

But it does not give the MAFIAA the control over the internet that they so desire.

Just as MegaUploads video was taken off youtube for no other reason than the MAFIAA not liking it, they would like to have that power over any and all sites on this series of tubes thingy called the internet.

I've come to stop caring about SOPA. It's doubtful that it will pass anyways. The bill can't even make it out of committee without huge amounts of controversy and stalling. Why would it pass two houses?

SOPA is just phase 1. Phase 2 is to introduce another similar bill that's not as bad as SOPA, but is still ridiculous. And that one will pass, because it's better than SOPA.

It's not "piracy". We need to take back the narrative AND the language from the narcissistic fuckwits who have been dominating it.

A more accurate term for this behavior is "squatting". A person who downloads a copy of a digital work without physically removing any material thing from the titular owner of that work has not stolen anything. His action is in fact analogous to a peasant squatting on land claimed by another. Now, admittedly it begins to look a whole lot more like theft if, instead of merely squatting, the person attempts to resell title to this land to which he doesn't actually possess title. That would compare to squatting as counterfeiting compares to "piracy"; those actions ARE stealing.

Squatting was never considered theft, because it wasn't. Neither is copying digital works for personal use.

"Dawson argued on behalf of small businesses with online presences. He claimed that five to ten percent of DMCA takedown notices already are fraudulent ones, and that SOPA will only boost the number of wrong accusations and penalties levied against legitimate businesses." Cry me a river. For every fraudulent DMCA notice there are hundreds if not thousands of legitimate ones. I suppose in Dawson's view the "small businesses" who create content for a living should be thrown under the bus.

If passing SOPA will increase the burden on small businesses (i.e. mean that they have to defend themselves against more fraudulent takedown actions) without substantially affecting rates of pirated and/or counterfeit activity (which seems likely to me), then how is it throwing them under the bus to not increase their burdens?

Quote:

The DMCA is virtually useless against all but the most minor and sporadic of copyright violations. For most content creators-authors, musicians, filmmakers, etc. the volume of piracy overwhelms their ability to effectively send take-down notices. Cyberlockers (that profit from the traffic generated by those who come to download illegal content) are loathe to truly respect the intent of the "safe harbor" provision of the DMCA. They pay it lip service in their "Terms of Service" yet do anything and everything to avoid the spirit of the law.

The DMCA is virtually useless. Why does it make sense to do the same thing but harder when we have historical evidence that this approach won't help, and will almost certainly hurt?

As for paying lip service to the law, go tell it to Hollywood and the music recording industry, whose business model is centered around accounting practices whose only reason for existing is to reduce payments to those who actually create content...and then the studios routinely cheat those very same people anyway. Those people are banging the drum of protecting the earnings of artists, but somehow that hasn't made much change to their contracts, their accounting practices, their history of bald-faced lies, of criminal actions (WB recently admitted-so far as I can tell-to wide-scale perjury...in federal court!).

"Dawson argued on behalf of small businesses with online presences. He claimed that five to ten percent of DMCA takedown notices already are fraudulent ones, and that SOPA will only boost the number of wrong accusations and penalties levied against legitimate businesses." Cry me a river. For every fraudulent DMCA notice there are hundreds if not thousands of legitimate ones. I suppose in Dawson's view the "small businesses" who create content for a living should be thrown under the bus.

The DMCA is virtually useless against all but the most minor and sporadic of copyright violations. For most content creators-authors, musicians, filmmakers, etc. the volume of piracy overwhelms their ability to effectively send take-down notices. Cyberlockers (that profit from the traffic generated by those who come to download illegal content) are loathe to truly respect the intent of the "safe harbor" provision of the DMCA. They pay it lip service in their "Terms of Service" yet do anything and everything to avoid the spirit of the law.

There are solutions. The first step is to recognize that the internet has become a focus of commerce, both good an bad. We regulate commerce in many ways. The internet should not be above the law. Taking action against piracy's profiteers will not "break the internet." Actually, it's likely to "fix" it.

I'm with you here but from a practical purpose, the very nature of the internet will resist widesweeping action. Any law must be very narrow, very targetted with little room to be broad. Otherwise the internet will route around it until it breaks or the illegals dig even deeper.

Lockers, that is a difficult one. They do a lot of takedowns. In fact, it is very hard to get current copyright materials via lockers. They get deleted pretty quickly, but, and im not supporting them here, practically, unless they want to go out of business, they have to maintain a level of openness which does invite non legal uploads. Even google cant completely filter their search results without completely breaking search. It is just sheer volume.

I dont see why individual investigation and punishment is not good enough for everything else but the internet. We dont see laws that shur down real life busineses based on accussation. Nor do we demolish buildings where a suspect may or may not be hiding his activities. If they feel the problem is large enough and destructive enough, a nuke is not the answer. The answer is a cyber police force that investigates and does proper forensics. Basically follow the self same rule of law already in place.

The problem here is, noone wants to pay for more than "after the fact forensics" . Noone wants to fund a cyber police force. Policy by itself cant do much but piss godzilla off. Without an arm to do proper policing, investigation on the national and inter-country levels, it simply cant ever work.

If the internet were the hulk, he'd just smash puny human laws! It takes ppl on the ground to manage the hulk. He cant be controlled and he cant be controlled by remote (law alone).

Limiting the freedom of the nation is not how the problem needs to be solved. The problem must be solved with the security elements of the intellectual property itself. If they can't stop us from sharing, then we should be allowed to share. Simple as that.

Can we please stop using the term 'rogue'. I know it worked very well for the PATRIOT act, but this is something different. I'd imagine a lot of the content that is pirated, isn't pirated just to spite the content creators, it's pirated because people want the content and these sites will give it to them. If Hollywood would stop playing games to try to milk out the last little bit of profit by making you buy content several times over, people would be more willing to buy it legitimately.

Netflix got quite an ear-full from their customers when they essentially made it harder to get the things that the people wanted. If you convert casual pirates to subscribers for $8/month, you'll make a lot more than trying to goat people into buying a DVD instead of waiting two months to rent it.

I've come to stop caring about SOPA. It's doubtful that it will pass anyways. The bill can't even make it out of committee without huge amounts of controversy and stalling. Why would it pass two houses?

NDAA 2012 passed both House & Senate, and then signed by the POTUS, even though the language was ambiguous enough to cause people to argue over whether it meant the POTUS could arrest any US Citizen he wanted indefinitely under military jurisdiction. This is legal work that should have gone back to get rewritten, b/c a lot of folks wrote in, called, etc to complain about the wording, the ambiguity, the too-encompassing nature of it, and it being pork-bellied onto a defense budget bill.

While we appreciate our Constitution being ambiguous and open to interpretation, our US government has gotten lazy these days by making bills laws ambiguous, too. Laws were meant to be very specific things to target very specific issues. Now, Gov just drafts up some ambiguous tripe to cover a specific issue, but it can also be interpreted to cover issues no one thought of at the time. (EG: Jamie Thomas-Rasset being convicted using boot-legging laws, b/c that law was ambiguous enough to get skewed for a P2P case).

Our gov thinks they're doing us a favor by giving the judicial branch a bunch of hammers to nail any problem they see. But, they're not. We need different tools for different problems. But, they want to be lazy and keep forging hammers for every problem, from fly swatting to glass pane installation....here's another hammer...it's not working? ... here's a BIGGER hammer.

"Dawson argued on behalf of small businesses with online presences. He claimed that five to ten percent of DMCA takedown notices already are fraudulent ones, and that SOPA will only boost the number of wrong accusations and penalties levied against legitimate businesses." Cry me a river. For every fraudulent DMCA notice there are hundreds if not thousands of legitimate ones.

I find your grasp of simple mathematics both laughable and somehow troubling. Should I be blaming the public school system here?

@OccupyPiracy: So it's more important to enable unsigned artists to mass-submit takedowns to every site imaginable with neither any requirements for evidence or punishment for abuse, than to allow people to share their photos, documents and videos online without worrying about getting banned because of some random accusation that went by such a wide search rule as "locker" being in the file name? (Real world example!!!)

You can not even prove that piracy is harmful, and yet you want to enable such draconian laws. And your example of how many legit DMCA takedowns there are relative to false ones proves you don't know math. By the number from the professor, it's 9-19, not even near a hundred.

1 in 20 false takedowns when there is millions of takedowns... That's thousands of accussations who people now have to fight with no ability to prove anything more than the accuser can. How would you like being banned from YouTube and Facebook with no realistic ability to get back on? They'll probably never even care about handling most complaints about false bans, because there will be too many.

Taking action to scare people from ever trying to participate in anything meaningful online is the opposite of fixing the internet.

Also, laws thay can't be enforced against the intended criminals undermine the legal system. Laws that the public despise undermine the government. But I guess you don't care, as long as you can enforce your stone age business model against a terrified general public.

"Dawson argued on behalf of small businesses with online presences. He claimed that five to ten percent of DMCA takedown notices already are fraudulent ones, and that SOPA will only boost the number of wrong accusations and penalties levied against legitimate businesses." Cry me a river. For every fraudulent DMCA notice there are hundreds if not thousands of legitimate ones.

I find your grasp of simple mathematics both laughable and somehow troubling. Should I be blaming the public school system here?

Well, one of the goals of the MPAA is to 'educate' users. One thing education will do is get people to stop using that dirty 'pirate math' everyone is so found of using where 5% is 1 in 20, instead going with Hollywood math, where Forrest Gump was a box office bomb. Remember kids, math is supposed to be creative.

It just shows you how out of touch the copyright groups are, they want to stop online file sharing when more and more people are sharing files directly with portable hard drives. People can carry their entire video and audio collection around and instead of sharing episodes one at a time or even complete seasons (if you are willing to let a huge torrent file download over days) they are getting many complete series at once and in less time (this is without device to device direct wireless connections which is easier than USB and cables). You also get the bonus of not having your ISP track or throttle your connection speeds and none of the content will eat into your data cap (if you have one). I guess the upside for the average person that copyrights groups are so slow is that the RIAA and MPAA will get smaller and smaller and have less and less influence.

SOPA/PIPA = WARAnd so does this OPEN as well.The Internet is Worldwide and is meant for Freedom.

I'd like to point out that any society curbs freedoms. This is natural. To live in modern society, I have given away certain right. I have given away the right to drown my kids for the lulz. I have given away the right to break your jaw for disagreeing with me. I have given away the right to take other peoples stuff. SOPA/PIPA are addressing that last concern on the internet. They just go about it the wrong way, because it's far too broad and gives far too much power without oversight. OPEN? OPEN looks pretty good to me.

Why should the internet remain 100% lawless? I may disagree with (GREATLY) with SOPA/PIPA, but I don't disagree with SOME of the fundamental reasons behind them. Why should you be able to get stuff for free? Sure, there is a world of difference between theft and downloading a song or movie or TV, but OPEN isn't about you downloading the latest lady gaga song (Shame on you! At least get better taste >.>), it's about people PROFITING off of you downloading her latest song. Of course, I'm not exactly a legal expert, so I could be wrong.

Personally, I still say the best bet is to counter piracy with legal online distribution channels. Not this "Here, you can rent this for 24h" bullshit. Not this "Well, if you want your OWN copy, you're limited to shit quality" bullshit. No, let me buy and download direct from source, full quality. Piracy has the legit products beat in both Quality and Price. When Piracy only wins in price, people will open their wallets for what they want. As it is, why am I going to pay you for a worse product than I can get from bit torrent for free?

Why should the internet remain 100% lawless? I may disagree with (GREATLY) with SOPA/PIPA, but I don't disagree with SOME of the fundamental reasons behind them. Why should you be able to get stuff for free?

You have the wrong approach here. Having laws is what requires a justification. There is a good reason to stop you from breaking my jaw, so you aren't allowed to do that. There isn't a good reason to stop you from watching transexual midget gangbangs, so you are allowed to do that, even though it would be hard to come up with a reason why you should be able to do that. The notion that we shouldn't be able to get stuff for free is ridiculous, at least by itself. The artificial scarcity created by copyright is what requires the justification, and we should give only as much scarcity as is beneficial for the public, and not an ounce more, as liberty and free flow of information are the most valuable public resources. Copyright holders already have far too much as it is, so the notion of giving them more is stupid.

A more accurate term for this behavior is "squatting". A person who downloads a copy of a digital work without physically removing any material thing from the titular owner of that work has not stolen anything. His action is in fact analogous to a peasant squatting on land claimed by another. Now, admittedly it begins to look a whole lot more like theft if, instead of merely squatting, the person attempts to resell title to this land to which he doesn't actually possess title. That would compare to squatting as counterfeiting compares to "piracy"; those actions ARE stealing.

And an even harder time equating trespass and fraud with counterfeiting, theft, and traffic in illegal goods. There is fraud in representing a product as being a particular product from a particular manufacturer when it's not, but that's only one element of one of the problems we're trying to solve.

Are you sure you understand the distinction between "intellectual property" and "property"?